PHILLIPS v. TOWNSHIP OF DARBY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 31, 1969

Bernice C. PHILLIPS, Plaintiff,
v.
TOWNSHIP OF DARBY, PENNSYLVANIA; the Township Board of Commissioners of the Township of Darby, Pennsylvania; William O. Johnson, Chief of Police of the Township of Darby Police Department; and Joseph J. Di Luzio, Justice of the Peace in the Township of Darby, Pennsylvania, Defendants

The parties have further stipulated that this ordinance prohibits any and all noise, produced by an artificial or mechanical device, in excess of that required by operation of the vehicle, regardless of whether or not the noise produced is "loud and raucous". Hence, the sole issue before us on this action for a preliminary injunction is whether plaintiff is likely to prevail, upon final hearing, on her contention that it is an unconstitutional abridgement of the right to free speech for the Township of Darby to prohibit absolutely, within its municipal limits, use of sound equipment which is attached to a vehicle? We answer this question in the affirmative.

As stated by Justice Reed in Kovacs v. Cooper, 336 U.S. 77, 83, 69 S. Ct. 448, 451, 93 L. Ed. 513 (1949), accommodation between the demands of beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the wellbeing and tranquillity of a community." A state should aim at achieving a wise accommodation between the demands of liberty and those of order. See id. at 89, 69 S. Ct. 448 (Frankfurter, concurring). However, if the state is too zealous in the pursuit of order, and freedom of speech is unreasonably restricted, then the regulation in question suffers from a constitutional infirmity. See, e.g., Stromberg v. State of Calif., 283 U.S. 359, 369, 370, 51 S. Ct. 532, 75 L. Ed. 1117 (1931).

Sound trucks do not in all cases constitute a substantial invasion of societal peace. For one thing, a sound truck may have its volume turned down to a relatively low level, for example in a case where other means (signs, displays, etc.) are employed to attract people, and the audio device is used to deliver a message to those who have gathered nearby. For another, even though it be admitted that, as a practical matter, sound trucks generally have to achieve a pitch that rises above other street noises, see Kovacs v. Cooper, 336 U.S. 77, 81, 69 S. Ct. 448, 93 L. Ed. 513 (1949), this is not tantamount to a finding that the pitch is socially disruptive. What the citizenry is accustomed to is not a constant level of sound, but to an average noise level which includes both periods of relative quiet and periods of relatively harsh and strident noises. Only if a sound truck is a major contributor to the harsh sounds, or if it produces sounds of unusual harshness, or if its harsh sounds last for an unusually long duration, will its sound substantially invade a community's tranquillity. We are of the opinion that sound trucks frequently do not cause substantial disruption in the context of our society. In light of the paramount importance of free speech and of possible uses
*fn2"
of sound trucks that are relatively innocuous, it seems to us that certain uses of sound trucks cannot be justifiably prohibited by the municipality, and thus Darby's absolute prohibition on the use of sound trucks is unconstitutionally overbroad.

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